1
00:00:00,080 --> 00:00:05,200
Speaker 1: Another episode in the saga of police investigations and smartphone technology.

2
00:00:05,480 --> 00:00:08,000
Speaker 1: The government has been allowed to force suspects to unlock

3
00:00:08,039 --> 00:00:11,600
Speaker 1: an iPhone with their fingerprint if they're sufficient evidence. However,

4
00:00:11,640 --> 00:00:14,079
Speaker 1: a federal judge in Illinois has drawn a line in

5
00:00:14,120 --> 00:00:17,759
Speaker 1: the sand. The government was investigating an Internet connection being

6
00:00:17,840 --> 00:00:20,959
Speaker 1: used to traffic and child pornography and wanted a warrant

7
00:00:21,000 --> 00:00:24,119
Speaker 1: to compel the people at the location to unlock any

8
00:00:24,160 --> 00:00:28,159
Speaker 1: Apple devices with their fingerprints. Judge David Wiseman refused to

9
00:00:28,200 --> 00:00:31,920
Speaker 1: issue the warrant, citing concerns about potential violations of the

10
00:00:31,960 --> 00:00:35,400
Speaker 1: Fourth and Fifth Amendment. Our guest is Robert Mintz. He's

11
00:00:35,400 --> 00:00:38,080
Speaker 1: the head of the White Collar and Government Investigations Group

12
00:00:38,080 --> 00:00:42,320
Speaker 1: at McCarter and English and a former federal prosecutor. Bob

13
00:00:42,640 --> 00:00:46,880
Speaker 1: under what circumstances is it clear that the government can

14
00:00:46,960 --> 00:00:49,960
Speaker 1: get a warrant to force someone to unlock an iPhone

15
00:00:50,120 --> 00:00:55,280
Speaker 1: with their fingerprint. Well, as you mentioned, that issue has

16
00:00:55,400 --> 00:00:59,680
Speaker 1: come before the courts before, and the courts have held

17
00:01:00,280 --> 00:01:05,440
Speaker 1: where there is a very specified need for that information

18
00:01:05,800 --> 00:01:09,039
Speaker 1: and the and the government has made out clear probable

19
00:01:09,160 --> 00:01:13,960
Speaker 1: cause um connecting the individual with the information that may

20
00:01:13,959 --> 00:01:17,480
Speaker 1: be on their cell phone. Prosecutors can in some instances

21
00:01:17,560 --> 00:01:22,040
Speaker 1: force an individual to unlock a cell phone, but in

22
00:01:22,080 --> 00:01:25,679
Speaker 1: this case, as you mentioned, the court found that there

23
00:01:25,800 --> 00:01:29,720
Speaker 1: was insufficient evidence based on the warrant that was presented

24
00:01:29,760 --> 00:01:33,800
Speaker 1: to the magistrate judge to require individuals who just happened

25
00:01:33,840 --> 00:01:37,319
Speaker 1: to be on the premises to use their thumbs to

26
00:01:37,440 --> 00:01:40,080
Speaker 1: unlock their cell phones, and the court relied both on

27
00:01:40,160 --> 00:01:43,800
Speaker 1: Fourth Amendment and on System Amendment grounds in denying that request.

28
00:01:44,360 --> 00:01:47,319
Speaker 1: You know, Bob, it seems a little strange on some

29
00:01:47,440 --> 00:01:50,040
Speaker 1: level to be talking about the Fourth Amendment rights of

30
00:01:50,080 --> 00:01:51,880
Speaker 1: people when we don't even know if they're going to

31
00:01:51,960 --> 00:01:54,200
Speaker 1: be there and their Fifth a moment rights, we don't

32
00:01:54,200 --> 00:01:55,919
Speaker 1: know who's going to be there. Is Is it normal

33
00:01:56,080 --> 00:01:59,880
Speaker 1: in a warrant application for the government to ask about

34
00:02:00,160 --> 00:02:02,120
Speaker 1: the methods by which they're going to search people they

35
00:02:02,160 --> 00:02:07,080
Speaker 1: might find at the at the location. Well, that is unusual, Michael.

36
00:02:07,080 --> 00:02:11,760
Speaker 1: I mean, usually what a warrant does is get establishes

37
00:02:11,840 --> 00:02:16,040
Speaker 1: probable cause that a crime has been committed and that

38
00:02:16,240 --> 00:02:20,840
Speaker 1: evidence of that crime is located at a particular premises. So,

39
00:02:20,880 --> 00:02:24,040
Speaker 1: in other words, it is based entirely on the premises

40
00:02:24,280 --> 00:02:27,960
Speaker 1: and not on a person in this case, this warrant

41
00:02:27,960 --> 00:02:33,160
Speaker 1: application and the judge's opinion got into issues of acts

42
00:02:33,200 --> 00:02:37,399
Speaker 1: of production and conduct by individuals who, as you mentioned,

43
00:02:37,760 --> 00:02:40,200
Speaker 1: may or may not even be at the premises at

44
00:02:40,240 --> 00:02:43,640
Speaker 1: the time that the search is executed. Bob, What was

45
00:02:43,680 --> 00:02:49,320
Speaker 1: the government's argument and the judge's response. Well, the government

46
00:02:49,520 --> 00:02:53,760
Speaker 1: argued first that there was no real Fourth Amendment concern

47
00:02:53,919 --> 00:02:58,200
Speaker 1: here because they had a right to detain individuals who

48
00:02:58,200 --> 00:03:00,920
Speaker 1: were present at the time of the or and therefore

49
00:03:01,000 --> 00:03:04,600
Speaker 1: that that element of the search was reasonable. And the

50
00:03:04,639 --> 00:03:08,440
Speaker 1: more interesting aspect of it was whether or not, once

51
00:03:08,600 --> 00:03:12,679
Speaker 1: somebody was detained, assuming that was reasonable, whether they could

52
00:03:12,720 --> 00:03:15,520
Speaker 1: be forced to use their sumb to unlock their own phone,

53
00:03:15,840 --> 00:03:18,560
Speaker 1: and whether or not that act would violate their Fifth

54
00:03:18,560 --> 00:03:22,280
Speaker 1: Amendment right against compelled self incrimination and not got into

55
00:03:22,320 --> 00:03:25,840
Speaker 1: a whole discussion about whether this simple act of placing

56
00:03:25,840 --> 00:03:29,960
Speaker 1: your thumb on your iPhone or on your iPad was

57
00:03:30,360 --> 00:03:34,600
Speaker 1: an act of testimony or was it merely a physical act.

58
00:03:34,639 --> 00:03:37,720
Speaker 1: Because there's a long line of cases that clearly established

59
00:03:37,720 --> 00:03:41,800
Speaker 1: that people have no Sis Amendment right to um giving

60
00:03:41,840 --> 00:03:45,160
Speaker 1: handwriting exemplars. For example, you can be compelled to give

61
00:03:45,200 --> 00:03:47,680
Speaker 1: a blood sample, you can be compelled to stand up

62
00:03:47,960 --> 00:03:50,960
Speaker 1: in a lineup, and of course you can be compelled

63
00:03:51,000 --> 00:03:54,280
Speaker 1: to give your fingerprints. That that that precedent goes back

64
00:03:54,320 --> 00:03:57,440
Speaker 1: to at least nineteen sixty seven, if not before that.

65
00:03:57,760 --> 00:04:01,120
Speaker 1: But here the court is saying that it's not simply

66
00:04:01,240 --> 00:04:03,880
Speaker 1: providing a fingerprint that can place you at the scene

67
00:04:03,880 --> 00:04:07,440
Speaker 1: of a crime. But by giving your fingerprint and unlocking

68
00:04:07,480 --> 00:04:10,640
Speaker 1: your cell phone, you are in essence testifying because you're

69
00:04:10,720 --> 00:04:14,880
Speaker 1: letting law enforcement know that you access that phone. Before that,

70
00:04:14,960 --> 00:04:17,600
Speaker 1: you set up the phone so it would access only

71
00:04:17,640 --> 00:04:21,520
Speaker 1: your fingerprint, and it essentially ties you to the information

72
00:04:21,760 --> 00:04:24,160
Speaker 1: on the cell phone in a way that's simply providing

73
00:04:24,240 --> 00:04:27,960
Speaker 1: your fingerprint does not well, But would it be any different, Bob,

74
00:04:28,000 --> 00:04:31,240
Speaker 1: if say the police found a person standing next to

75
00:04:31,240 --> 00:04:34,320
Speaker 1: a cell phone at the location and then said please

76
00:04:34,400 --> 00:04:36,560
Speaker 1: put all ten of your fingers on and they'll see

77
00:04:36,560 --> 00:04:38,119
Speaker 1: if any of them opens it up, and the person

78
00:04:38,160 --> 00:04:43,680
Speaker 1: doesn't tell them anything about it, Well, it's it's that

79
00:04:43,680 --> 00:04:46,120
Speaker 1: that that is a similar case. And and the judge

80
00:04:46,120 --> 00:04:51,760
Speaker 1: actually talked about the difference between um asking somebody to

81
00:04:52,480 --> 00:04:55,440
Speaker 1: put their fingerprint on ten different phones and tie them

82
00:04:55,440 --> 00:04:59,160
Speaker 1: to the to an individual phone versus tying them to

83
00:04:59,400 --> 00:05:02,840
Speaker 1: one phone they happen to have on their on their presence.

84
00:05:03,120 --> 00:05:06,320
Speaker 1: I think what we're seeing here that makes this case

85
00:05:06,480 --> 00:05:09,280
Speaker 1: unique and and has been brought up in other cases,

86
00:05:09,440 --> 00:05:12,360
Speaker 1: is that courts are troubled by the vast amount of

87
00:05:12,400 --> 00:05:16,120
Speaker 1: information that is contained on cell phones these days. And

88
00:05:16,160 --> 00:05:18,720
Speaker 1: there was a Supreme Court case just a few years ago,

89
00:05:19,360 --> 00:05:22,320
Speaker 1: um the Riley case, which talked about the fact that

90
00:05:22,440 --> 00:05:25,360
Speaker 1: this is not simply a cell phone, but they referred

91
00:05:25,360 --> 00:05:28,200
Speaker 1: to it as a mini computer. And the magistrate judge

92
00:05:28,240 --> 00:05:31,120
Speaker 1: in this case cited that case to say that there's

93
00:05:31,160 --> 00:05:34,440
Speaker 1: a higher Fourth Amendment standards here because you're not simply

94
00:05:34,480 --> 00:05:37,560
Speaker 1: accessing a phone to find out what calls somebody made

95
00:05:37,640 --> 00:05:40,440
Speaker 1: or what calls somebody may have received, but you're accessing

96
00:05:40,560 --> 00:05:44,880
Speaker 1: essentially their whole life, their medical records, their contacts. You

97
00:05:44,920 --> 00:05:48,120
Speaker 1: can find out locations and where somebody has been, where

98
00:05:48,200 --> 00:05:52,280
Speaker 1: somebody may have purchased um uh things, and and and

99
00:05:52,400 --> 00:05:56,040
Speaker 1: tie their location, their associations. It really opens up their

100
00:05:56,200 --> 00:05:59,760
Speaker 1: entire life. And so courts have now used a higher

101
00:06:00,000 --> 00:06:04,240
Speaker 1: andered a higher Fourth Amendment standard untoldntole prosecutors that you

102
00:06:04,240 --> 00:06:07,680
Speaker 1: have to really have specific evidence that ties the individual

103
00:06:08,000 --> 00:06:10,280
Speaker 1: to a crime and shows that there's a connection between

104
00:06:10,320 --> 00:06:13,000
Speaker 1: the individual and the information on that cell phone before

105
00:06:13,040 --> 00:06:15,120
Speaker 1: a judge is going to allow you sort of a

106
00:06:15,279 --> 00:06:19,679
Speaker 1: blanket provision as the prosecutors were looking for in this case,

107
00:06:19,920 --> 00:06:23,000
Speaker 1: to say that everybody who might be present has to

108
00:06:23,040 --> 00:06:25,000
Speaker 1: put their finger on their phone and give up that

109
00:06:25,040 --> 00:06:28,279
Speaker 1: type of personal and private information. Thank you. That's Bob

110
00:06:28,360 --> 00:06:31,960
Speaker 1: Mints of Macarter and English and a former federal prosecutor

111
00:06:32,080 --> 00:06:35,080
Speaker 1: coming up on Bloomberg law. A thirteen year old Michigan

112
00:06:35,160 --> 00:06:38,440
Speaker 1: girl with cerebral palsy and her service dog Wonder when

113
00:06:38,440 --> 00:06:41,160
Speaker 1: a case for disabled students at the Supreme Court. This

114
00:06:41,360 --> 00:06:42,040
Speaker 1: is Bloomberg